First Amendment: Commercial Speech

In Sorrell v. IMS Health(10-779), the Court held that a Vermont statute limiting the gathering and use of data about doctors' prescriptions by pharmaceutical sales representatives violated the First Amendment. Upholding the U.S. Court of Appeals for the Second Circuit's decision that Vermont's law was unconstitutional, the Court's holding explicitly negated First Circuit decisions holding that similar statutes in New Hampshire and Maine are constitutional. The Court's decision therefore implicates statutes in three states: Vermont, Maine, and New Hampshire.

In an opinion joined by Chief Justice Roberts and by Justices Scalia, Thomas, Alito, and Sotomayor, Justice Kennedy concluded that the Vermont statute imposed restrictions on the gathering and use of information about doctors' prescription activity that targeted particular types of content and speakers. He came to this conclusion because the statute contained exceptions allowing certain types of people (e.g. academics) - but not pharmaceutical representatives - to access the prescription information, and because disclosure and use for marketing purposes were explicitly prohibited. His conclusion was bolstered by the fact that Vermont's legislature had explicitly stated its intention to address the gathering and use of doctor prescription information by pharmaceutical companies.

Finding that Vermont's statute explicitly disfavored marketing and pharmaceutical companies, the Court held that a "heightened" First Amendment scrutiny should be applied. The Court concluded that Vermont's legitimate legislative purposes - protecting medical privacy, keeping prescription costs low, and protecting public health - could have been achieved through less restrictive legislation, and therefore held that the statute was unconstitutional under the First Amendment.

Justice Breyer issued a forceful dissent, which was joined by Justices Ginsburg and Kagan. Summarizing the distinctions that have previously been made in First Amendment jurisprudence, Justice Breyer argued that the Court's decision was not supported by any previous decisions. He argued that the Court should either follow its prior holdings relating to commercial speech, or should treat the Vermont statute as an ordinary case of regulation for public health purposes, irrespective of its indirect effects on commercial speech. Justice Breyer expressed concern that the Court's holding could bring back the days of judicial involvement in economic legislation characterizing the so-called "Lochner Era" (late 19th and early 20th Centuries).